Wednesday, March 26, 2014

The Honduran Supreme Court, or more properly, the Constitutional Branch of the Supreme Court, packed with National Party supporters while Juan Orlando Hernández was head of Congress, paid a dividend yesterday by issuing a blatantly political opinion, with no legal argument to back it up.

The case has its origins in the November, 2013 elections for Mayor of San Luis, Comayagua. Leny Flores Suazo of the Liberal Party was running against Santos Iván Zelaya Chacón of the National Party.

Both candidates declared themselves the winner, forcing the Tribunal Supremo Electoral (TSE) to recount the votes. But recount in Honduras does not mean what you think it means. A "recount" in Honduras entails just re-tallying the votes already recording on the tally sheets, not recounting each vote. The Tribunal Supremo Electoral has maintained that this is the only recount mechanism allowed under its regulations.

After the recount, the TSE declared the election a tie.

The candidates then both voluntarily agreed to flip a coin, and whoever won the toss would assume office. This procedure is called for under Honduran law, if both candidates voluntarily agree to it. Leny Flores Suazo won the coin toss, and the TSE formally declared him the winner of the election. He was given paperwork by the TSE naming him the winner. He was sworn in to office on January 27, 2014.

More than a month later, the National Party candidate appealed to the TSE to declare the election null and void and call for a new election.

After the TSE turned him down, he appealed to the Supreme Court alleging there was no transparency in the recount process. We tend to sympathize with Zelaya Chacón, because the "recount" is actually pointless, unless you believe a simple math error, rather than the original vote counting, is the problem. But it isn't particularly impenetrable: the TSE adds the numbers a second time.

The Constitutional Branch accepted the case, and following usual procedure solicited an opinion from the Public Prosecutor, Oscar Chinchilla. He is a former Supreme Court justice himself, and the only justice that Hernández kept in the Constitutional Branch when he replaced the other four.

Despite these ties, Oscar Chinchilla actually concurred with the TSE, arguing that what it did was correct and in accordance with the Electoral Law and the Law of Political Parties, which called for the the coin toss in the case of a tie if both parties agreed to it. There is no dispute of their agreement to abide by the results of the coin toss.

The Constitutional Branch, however, unanimously rejected the Public Prosecutor's opinion and found against the TSE.

They ruled that the TSE violated the transparency requirements by not immediately consulting the original ballots themselves, rather than the tally sheets, and this failure violated Zelaya Chacón's rights to due process even before the coin toss happened.

They reportedly wrote, in part:

It is clear to this Constitutional Chamber that the Supreme Electoral Tribunal has violated the political rights of the complainant, adopting resolutions lacking sufficient motivation, lacking the accuracy of the procedure.

But this is where the train left the tracks. Rather than order the TSE to reconsult the ballots, or to hold a new election for mayor if the original ballots were no longer available (which is likely), they wrote:

Because of all the reasons previously cited, the appeal placed by Mr. Eneas Portillo Cabrera for Mr. Santos Iván Zelaya Chacón, should be granted with the effect that it restores to him full possession and exercise of his political rights, in such a manner that he can exercise for the rest of the time allowed, the job of Mayor of the town of San Luis, department of Comayagua.

The court simply declared Zelaya Chacón the winner, with no constitutional or legal basis provided for such a ruling, and awarded him the election.

Flores Suazo is reported to have said:

So far, it looks like in Honduras, the Supreme Court imposes Mayors [on towns] and sets aside the resolutions of the Election Tribunal.

This is exactly what happened. Neither every one's due process rights nor the people's votes to determine the outcome of the election were preserved by this ruling. Why even bother to hold elections?

But that's not the end of this story. Flores Suazo called on Mauricio Villeda, his party's head of its Congressional delegation. He has received the unanimous support of the Liberal Party congressional delegation. Villeda told the press:

The Liberal party was surprised and is angry by the legal decision handed down by the Constitutional Branch of the Supreme Court concerning the case of the Mayor of San Luis. This election was a tie and was decided by a coin toss. Afterwards the Constitutional Branch got involved; listen well to what I am saying: concerning election law, where the highest authority is the Supreme Election Tribunal. This has surprised us and we don't want a precedent like this to exist in Honduras.

When asked who might have pressured the court, Villeda said:

Possibly various people from the National Party because they have replaced a Liberal Party Mayor. Sufficient corruption exists already in this National Party government for there to also be corruption in election business. We must make it clean and only the social communications media can help...

Villeda went on to indicate that this will become an issue in the alliance in Congress between the National and Liberal parties, saying that what the Liberals enabled in Congress, they can just as easily make impossible by breaking the alliance.

The Liberal Party has indicated that once they have had time to study this decision, they will appeal it to the full Supreme Court, but in the meantime, that court has imposed a mayor who was not elected on San Luis, Comayagua, for political, not legal, reasons.

Afterward, a communique read by his chief of staff, Reinaldo Sanchez, ordered a review and restructuring of the Unidad de Registro y Seguimiento de Asociaciones Civiles (URSAC), the unit that just a few days ago tried to cancel the registration of 5,429 NGOs claiming deficiencies in their filings.

The goal of the review and restructuring will be to have better control over the NGOs and to modernize the handling of NGO authorizations and the filing of required reports.

The government also walked back the cancellation of those 5429 organizations, ordering a new review of each one's files.

Sanchez noted that the government was aware of the importance of the role played by civil society and the NGOs in strengthening Honduras's democracy and diminishing economic inequality.

Monday, March 10, 2014

Wilfredo Cerrato, Honduras's Finance Minister, told the assembled press on March 7 that Honduras will seek to place $1 billion in bonds in the international market in 2015, and that he would head a delegation traveling to Washington, DC later this month to learn what conditions must be met for Honduras to re-establish a borrowing agreement with the IMF, which he also hopes will be in place sometime in 2015.

The Honduran press only covered one part of this story. Can you guess which?

The international press primarily reported on the bonds story, though some did lead with the IMF trip. Cerrato told them the bond placement was specifically to convert short term high interest internal debt issued by the Honduran banks to long term, lower interest, international bonds. Two year high-interest bonds will be replaced by 10 year lower interest bonds.

This kind of short term debt was largely shunned until Roberto Micheletti Bain, head of the post-coup de facto government, was forced to make deals with Honduran banks in 2009 because no international placement of bonds was possible after the coup.

That use of Honduran banks, that benefits the upper class of Honduras which owns them, continued under Porfirio Lobo Sosa. So government debt payments went from $65.8 million per year in 2008, to a yearly debt payment of $789.6 million when Lobo Sosa left office in January 2014.

The Hernandez government projects that the 2014 debt payment will reach $930 million (!) with the borrowing it must do this year to balance the budget.

But that story is not being publicized by the Honduran press.

Instead, they chose to report only on the visit to the IMF to learn about the necessary conditions for arranging a new loan agreement. Cerrato told the press that he projected a new agreement could be signed this coming April. One wonders what that optimism is based on, since Honduras has not formally spoken to the IMF yet, and the Hernandez government has not yet begun to achieve the financial goals they set for themselves.

Honduras successfully placed $1 billion in bonds in two sales in 2013, and the proceeds from those bonds were used to pay down some of the more egregious short term loans and finance the Lobo Sosa government deficit spending for 2013. With debt service reaching nearly $1 billion by the end of this year, the Hernandez government will find itself trapped continuing to seek external financing, if it wants to avoid an austerity budget even harsher than what seems to be in the works.

Sunday, March 9, 2014

On his way out of the government, Áfrico Madrid, Interior Minister under Porfirio Lobo Sosa, saw the final step in a long-brewing confrontation in which he has been engaged.

That step? abolishing his opponents-- more than 10,000 NGOs.

Friday La Gacetapublished a decree revoking the legal status of 5429 NGOs. The Unidad de Registro y Seguimiento de Asociaciones Civiles (URSAC), a
part of the Interior Ministry, issued the decree that revokes the
permission of these NGOs to operate.

This comes slightly more than a month after Madrid revoked the legal status of another 4800 NGOs in mid January.

Honduras reportedly had about 16,000 NGOs at the start of 2013. So altogether, these two decrees succeeded in abolishing more than half of the NGOs in the country.

That makes it a little harder to figure out who this campaign was really targeting and why.

We would remind readers that back in 2010, the Honduran Congress passed a law to define the characteristics of an evangelical Christian church, declared unconstitutional in 2012, that advanced Madrid's agenda to abolish evangelical churches he felt were "fringe" groups.

According to the decree published this week, the named institutions failed to comply in some way with a previous decree 770-A-2003 regulating NGOs, which gave a 30 day window for every NGO to supply an annual activities report, a financial report, indicate its officers, and so on.

What does the abolishment of these NGOs translate to, in practice?

They can no longer sign contracts or hold bank accounts.

They are ordered to liquidate any property and goods held, and donate the proceeds of that liquidation to a still extant NGO with a similar goal.

All Honduran banks and government agencies were notified of the loss of rights of these 5,429 NGOs. In 30 days, their bank accounts will be frozen by the government, and any remaining assets seized.

This is not just a matter of eliminating a few small and inconsequential groups that were struggling.

Among the NGOs cancelled was the Asociación Comite por Libre Expresión (C-Libre), the most visible group monitoring press freedom in Honduras, composed of of journalists and others.

Hector Longino Becerra, president of the organization, said that the action against C-Libre was part of an attack on organizations that are critical of the government. Becerra said that all of C-Libre's paperwork with URSAC was complete and up to date, and he possessed the receipts to show the filing was done on time.

In the wake of the Friday publication of La Gaceta, Jorge Montes, head of URSAC, claimed Saturday that the NGOs still had 30 days to make things right and avoid cancellation.

That claim is hard to understand since the published law reportedly cancels the legal right to exist of the named NGOs. Montes claims that each NGO's legal representative will be notified in 30 days of the cancellation if, prior to that, their paperwork is not brought up to date.

He emphasized three kinds of reports that need to be filed: a report on activities; a financial report that indicates what money the group holds, where it came from, and where and how it will be spent, and where the NGO's assets are; and an up-to-date list of officers.

The Civil Society Group that advises the government is disturbed by all this and has requested a meeting with Rigoberto Chang Castillo, current Interior Minister, and thus the head of URSAC.

They stated:

It is the responsibility of the state to create an enabling environment for the functioning of civil society organizations and to keep watch over the unfettered right to free association.

Their point: the Honduran government isn't doing that when 62% of the country's legally established NGOs are disestablished by the government.

Wednesday, March 5, 2014

A reporter for Channel 5 in Tegucigalpa, Honduras reportedly tweeted a picture yesterday of sworn testimony given by a suspended judge that he says links the brother of President Juan Orlando Hernández to a Colombian arrested in a marijuana growing operation and high tech drug lab in the department of Lempira.

We don't agree with the inferences being drawn. There clearly is a pervasive penetration of drug money throughout Honduran society, but the standards for guilt in Honduras too often rest on rumor and innuendo.

On January 30, the Honduran police and military shut down a drug operation in La Iguala, Lempira that consisted of a very large suite of greenhouses being used for growing marijuana and opium poppies. It also contained what was described as a high tech drug lab.

This was not the first time Rubén Dario Pinilla had been arrested in Honduras on drug related charges. On the 25th of July of last year, he was arrested in the same town along with another Colombian, Fredy Hernán Roldán Jiménez. They were found to be growing 73 pot plants, with 2440 seedlings alleged to be pot plants growing in the same greenhouses on the same property.

That case came before judge Francisco Rodríguez in the city of Gracias a Dios in the department of Lempira, and the judge dismissed the charges against both Pinilla and Roldan Jimenez on July 31, 2013.

Both were represented in court by the law office of Tony Hernández, brother of President Juan Orlando Hernandez.

Since then, the police involved in the initial arrest, the police chief in La Iguala, and the judge who heard that July, 2013 legal case against the two Colombians, have all been suspended and are being investigated to see if they have ties to the drug-growing operation or have done anything illegal.

What was publicized this week was a picture of one page of the deposition of the judge who released Pinilla in the 2013 case, conducted by the Public Prosecutor's office. It gives us the judge's claims-- which we can say from the outset will predictably be designed to assign responsibility for this failure of the justice system somewhere else.

Prosecutor's Office: Asked so that you can say: do you have any knowledge of these Colombian persons paying money either to the lawyers, the judge and the police to be put at liberty?

Judge: I personally in no moment had physical contact or communication with Rubén Pinilla and Hernán Jimenez. The only time I saw them was in the arraignment when they were represented by the law office of Tony Hernandez, brother of the president of the republic of Honduras, and by the lawyer José Antonio Madrid Corea. Of the thing that they talk about in the newspapers, I don't know anything about who they gave money to, the mechanisms used to give them money, persons involved, and I did not receive money from the two accused and I ask you to investigate me.....you should also investigate to see if at any time I went to the local prison in Gracias, Lempira, to talk to the two accused and I give you my cell phone number [redacted by me] to see if I ever had contact with them in the dates they were deprived of their liberty, from July 24 to 31 in 2013....

A reporter can tweet that this shows that Tony Hernandez was involved in this drug case, but all it actually shows is that, as legal systems in Honduras allow, the defendants even in controversial issues are entitled to legal representation.

The judge's answers to other questions on the single page of testimony released seems to suggest that he freed the defendant because the police failed to supply all the necessary documents to build a case against Pinilla. The page starts in the middle of a response by the judge to a question we cannot see, but that must deal with the legal documents because his response is that "I personally, in all the analysis of the file, this documentation doesn't appear. The deposition continues:

Prosecutor's Office: Asked so you can say: in the initial hearing did you interrogate the agent Pablo Albarenga about the facts just mentioned?

Judge: if I personally had had in the administrative file the said paperwork on the actions carried out by the agent Pablo Albarenga, I would have asked the questions related to those aspects, but it did not exist.

The implication is that this omission might have been deliberate. But that points not at the defense, but the police investigating officer.

That would not be surprising. But it makes for a far less scandalous story: police in the pocket of organized crime is an old story, not news.